It is first noted that the basic law in Korea regulating labor standards is the Labor Standards Act (“LSA”), ”), which is applicable to the employers with at least 5 employees. As for the employers with less than 5 employees, only a part of LSA provisions would be applicable. And, LSA provisions relating to our comments below are not applicable to these employers with less than 5 employees. The only statutory restriction for a employer with less than 5 employees is the prohibition of dismissal during a particular period of time such as employee’s illness and childbirth. That said, please bear in mind that our comments below are only provided for employers and employees at a workplace with at least 5 employees.
Article 23 of LSA requires a “justifiable cause” if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees. Korean courts have held that a “justifiable cause” refers to such causes as criminal offence, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.
Especially, because a termination of employment is the most extreme measure, taking away an employee’s means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified. Thus, Continue reading